Where an employee is dismissed for misconduct, one of the issues faced by the Fair Work Commission in an unfair dismissal is to determine where the onus of proving the alleged facts relied upon by the employer or disproving those alleged by the employer lies. Here is the answer.
“Applying these principles, it has been observed on many occasions at the Full Bench
level that an employer has, for practical purposes, what may best be described as an evidentiary
onus to call evidence to establish the misconduct on which it relies.21 There is no doubt that
NSW Trains met its evidentiary onus in the present case when it tendered the CCTV footage
which showed the violent interaction between Mr Al-Buseri and a member of the public at
Bankstown Railway Station. However, it was Mr Al-Buseri who raised the contention, or
defence, that he acted in self-defence throughout his interaction with the member of the public.
One of the main questions before us is whether the Deputy President was correct in determining
that NSW Trains had an onus to establish that Mr Al-Buseri’s actions were not undertaken in
self-defence.
[23] In Whittaker, Deputy President McCarthy considered the issue of self-defence in an
unfair dismissal case and made the following observations:
“[7] The Full Bench in Culpepper found that approaches to self defence, who the
aggressor was is not the determinative factor. Once the fact is established that the
Applicant hit the other employee it is up to the Applicant to establish that the act or acts
were in self-defence. In order to establish whether the act or acts were in self-defence
in this matter it is necessary to address (i) the holding of the belief, (ii) whether there
were reasonable grounds to hold the belief, (iii) whether a means of escape was
available, (iv) the type of force used and whether it was excessive and not out of
proportion to the danger seeking to be avoided, and (v) the circumstances giving rise to
the incident.”
[24] Heading was a case in which an employee argued that there was no valid reason for his
dismissal because he acted in self-defence in response to a threat of imminent harm from a
detainee in a correctional facility. On appeal before the Full Bench, Mr Heading argued that the
law of self-defence was not applied because it was not proven beyond reasonable doubt that Mr
Heading did not believe at the time of the conduct that it was necessary for him to do what he
did to defend himself. The Full Bench observed that:
[2023] FWCFB 165
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“[22] It is of course not the case, as suggested in appeal ground 1, that the respondent
had the onus of proving beyond reasonable doubt that Mr Heading did not act in self
defence. The burden of persuasion (on the balance of probabilities) in this respect lay
with Mr Heading.”
[25] We do not agree with the submission advanced on behalf of Mr Al-Buseri that the
decisions in Heading and Whittaker are wrong insofar as they concern the question of onus in
cases involving self-defence. If an employer adduces evidence before the Commission to
establish misconduct on the part of an employee and the employee’s response is to assert that
they used self-defence and thereby had a lawful reason to act in the way that they did, then the
employee bears the onus of adducing evidence necessary to establish that they acted in selfdefence. That reasoning involves a direct application of the approach described in paragraph
[21] above. Further, such an approach is consistent with the way in which arguments of selfdefence are considered in other civil law contexts.22
[26] There can be no doubt that the Deputy President considered that NSW Trains had the
onus to establish that Mr Al-Buseri was not acting in self-defence during his violent interaction
with a member of the public on 29 July 2022. So much is clear from paragraphs [42], [43]-[45],
and [73(b)] of the Decision. For the reasons explained above, such an approach was erroneous.
[27] We now turn to the Deputy President’s finding in paragraph [73(c)]. The chapeau to
paragraph [73] of the Decision refers to the findings in paragraphs (a), (b) and (c) being made
“On the evidence before me”. This supports Mr Al-Buseri’s contention that the finding in
paragraph [73(c)] is a stand-alone finding. Similarly, the reference in paragraph [74(b)] that
“the Applicant was (or may have been) acting in self defence” [emphasis added] points in the
same direction. However, on a fair reading of the Decision as a whole, we consider that the
finding made by the Deputy President in paragraph [73(c)] was not an independent finding and
instead was considered by the Deputy President to flow automatically from his finding in
paragraph [73(b)]. We have reached that view for three reasons. First, the Deputy President
went to great lengths in paragraphs [35] to [44] of the Decision to explain the law in relation to
self-defence, including by reference to the Criminal Trials Courts Bench Book (NSW).23 In
those paragraphs, the point is repeatedly made that if the prosecutor (or in this case (as the
Deputy President viewed it), NSW Trains) did not establish or prove any of the elements of
self-defence, then the issue “must be determined against the party carrying the legal burden of
proof”.24 Secondly, the Deputy President’s reasoning in paragraph [73] appears to be largely
based on the ‘essential components’ of a direction to a jury in a criminal trial on the question
of self-defence, as described in paragraph [42] of the Decision. In particular, the reference in
paragraph [73(a)] of the Decision to Mr Al-Buseri being “entitled (as a matter of law) to defend
himself from the Offender” is very similar to the first paragraph of the direction extracted in
paragraph [42]: “The law recognises the right of a person to act in self-defence from an attack
or threatened attack.” Paragraph [73(b)] of the Decision appears to be a combination of
directions 2 to 5 extracted in paragraph [42] (with alterations to the standard of proof being on
the balance of probabilities) and the alternative way of framing the relevant questions in a
criminal trial, as set out in point 5 in paragraph [43] of the Decision. Paragraph [73(c)] of the
Decision is the conclusion which must follow if the prosecution in a criminal case fails to prove
any of the elements of self-defence, as explained in directions 5 and 6 of the direction extracted
in paragraph [42]. Thirdly, if the finding in paragraph [73(c)] of the Decision was independent
of the finding in paragraph [73(b)], it could reasonably be expected that the Deputy President
[2023] FWCFB 165
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would have explained why he was satisfied that (i) Mr Al-Buseri believed his actions to be
necessary in the circumstances and (ii) Mr Al-Buseri’s actions were a reasonable response to
the circumstances. No such reasons are provided in the Decision.
[28] In any event, we agree with NSW Trains that the finding in paragraph [73(c)(ii)] of the
Decision is erroneous because it applies the wrong test in relation to self-defence in a civil law
context. There is no issue between the parties, and we agree, that the common law test to be
applied in cases involving self-defence is whether a person believes on reasonable grounds that
it was necessary in self-defence to do what they did.25 This test is applicable in civil matters.26
There is both a subjective and an objective element to the test. The subjective element concerns
the belief that the conduct was necessary in the circumstances. The objective element goes to
whether there were reasonable grounds for the belief.
[29] In Doran v Director of Public Prosecutions,
27 Simpson AJA considered the difference
between the requirement under the common law of self-defence to examine whether there were
reasonable grounds for a person’s belief with the requirement under s 418(2) of the Crimes Act
1900 (NSW) to examine whether the “conduct is a reasonable response in the circumstances as
he or she perceives them” [emphasis added]:
“[42] … The notable difference is that Katarzynski was decided under the law of selfdefence as stated in Pt 11 Div 3 of the Crimes Act. The statutory provision is a significant
departure from the common law. Where the second part of the test at common law was
whether the prosecution had proved that the defendant’s belief was not based on
reasonable grounds, under s 418 the second question is whether there is a reasonable
possibility that what the defendant did was a reasonable response to the circumstances
as the defendant perceived them. That is an important difference. It necessarily imports
into the assessment of reasonableness the state of mind – that is, the perception – of the
defendant. But, as will be seen, the assessment of the reasonableness of the response
remains an objective one.”
[30] We agree with Simpson AJA that there are important differences between the common
law test and the test under the Crimes Act for self-defence.
[31] Assuming the finding in paragraph [73(c)] of the Decision was independent of the
finding in paragraph [73(b)], the Deputy President applied the Crimes Act test in paragraph
[73(c)(ii)] of the Decision because he considered whether Mr Al-Buseri’s response was
reasonable “in the circumstances as the Applicant perceived such circumstances to be”
[emphasis added]. With respect, that was the wrong test to be applied. The common law test
should have been applied. It required the Deputy President to consider whether there were
reasonable grounds for the belief held by Mr Al-Buseri.
[32] The Deputy President’s findings in relation to self-defence were central to his
conclusion that there was no valid reason for Mr Al-Buseri’s dismissal.28 In light of the errors
we have identified in the Decision concerning the issue of self-defence, we agree with the
submission put on behalf of NSW Trains that the Decision must be quashed and the matter
reheard.
Conclusion
[2023] FWCFB 165
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[33] We consider that it is in the public interest to grant permission to appeal because this
appeal raises issues of general importance concerning the test to be applied when an employee
makes an allegation of self-defence in response to allegations of misconduct.
[34] For the reasons given above, we order that:
- Permission to appeal is granted.
- The appeal is upheld.
- The Decision and Orders are quashed.
- The matter is to be reheard by Deputy President Cross.
[35] We also direct the parties to let the Associate to Deputy President Saunders know,
within seven days of this decision being published, whether they consent to participating in
conciliation before Deputy President Grayson. If both parties so consent, Deputy President
Grayson will conduct a conciliation conference prior to the rehearing before Deputy President
Cross. We see considerable merit and benefits to both parties in a member assisted conciliation
taking place prior to a rehearing.”
Appeal by Nsw Trains T/A Nsw Trainlink and Wael Al-Buseri [2023] FWCFB 165 delivered 21 September 2023 per Saunders DP, Cross DP and Grayson D